New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

Complex Lit Blog

Failure to Withdraw a Claim or Respond to Discovery Is Not Sanctionable under Rule 11 — Continuing to Litigate after Baselessness Is Clear Is Sanctionable — No Right to Condition Dismissal of Baseless Claim on Stipulation from Adversary

From Dearborn Street Bldg. Assocs., LLC v. Huntington Nat’l Bank, 411 F. App'x 847 (6th Cir. 2011): On September 16, 2009, Dearborn prevailed on its fraudulent transfer claims with respect to defendants D&T and PCI and received a monetary judgment. However, in an opinion dated September 30, 2009, the district court granted Hunting ...
From Dearborn Street Bldg. Assocs., LLC v. Huntington Nat’l Bank, 411 F. App’x 847 (6th Cir. 2011): On September 16, 2009, Dearborn prevailed on its fraudulent transfer claims with respect to defendants D&T and PCI and received a monetary judgment.…
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Circuit Split as to Whether Res Judicata Can Be Afforded in District Court to Bankruptcy Court Judgment on Non-Core Claim — Collateral Estoppel OK — Impact of Stern Unresolved — No Collateral Attack Based on Standing

From Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 2011 U.S. App. LEXIS 15537 (7th Cir. July 28, 2011): A. Origin of the Dispute ***Stylemaster was and Matrix continues to be in the molded-plastics industry. Starting in 1994, Stylemaster bought plastic injection molds from an outside vendor and had them shipped direct ...
From Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 2011 U.S. App. LEXIS 15537 (7th Cir. July 28, 2011): A. Origin of the Dispute ***Stylemaster was and Matrix continues to be in the molded-plastics industry. Starting…
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F. R. App. 38 — Fact that Complaint May Have Been Frivolous when Filed Does Not Mean Appeal from a Dismissal Is Frivolous — Must be “Totally Lacking in Merit”

From Erchonia Corp. v. Bissoon, 2011 U.S. App. LEXIS 9719 (2d Cir. May 11, 2011): Appellees move this Court for sanctions pursuant to Federal Rule of Appellate Procedure 38 arguing principally that Appellant's appeal was frivolous for the same reasons the underlying lawsuit was frivolous — "Erchonia had . . . virtually no physical ev ...
From Erchonia Corp. v. Bissoon, 2011 U.S. App. LEXIS 9719 (2d Cir. May 11, 2011): Appellees move this Court for sanctions pursuant to Federal Rule of Appellate Procedure 38 arguing principally that Appellant’s appeal was frivolous for the same reasons…
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Bank Owes No Duty of Care to Non-Customers, Including No Duty to Detect Fraudulent Conduct of Its Customers

From Public Serv. Co. of Okla. v. A Plus, Inc., 2011 U.S. Dist. LEXIS 85179 (W.D. Okla. Aug. 2, 2011): PSO brought this action to recover sums it paid to A Plus, Inc. a/k/a Jarvis Furniture a/k/a A Plus Spraying (collectively, "A Plus") pursuant to invoices submitted to PSO by A Plus and/or its owners, defendants Randel R. Stone and Kimb ...
From Public Serv. Co. of Okla. v. A Plus, Inc., 2011 U.S. Dist. LEXIS 85179 (W.D. Okla. Aug. 2, 2011): PSO brought this action to recover sums it paid to A Plus, Inc. a/k/a Jarvis Furniture a/k/a A Plus Spraying…
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Standards of Admissibility for Expert Testimony as to Ultimate Issue, Credibility Determinations and State of Mind

From Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) (§ 1983 action against a police officer): Plaintiff's police expert Walter Signorelli ("Signorelli") filed reports in this case on July 31, 2010.... Defendants move to preclude Signorelli from testifying to or otherwise presenting evidence of opinions tha ...
From Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) (§ 1983 action against a police officer): Plaintiff’s police expert Walter Signorelli (“Signorelli”) filed reports in this case on July 31, 2010…. Defendants move to preclude…
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Verified Pleadings Satisfy Evidentiary Standard of Rule 56, Particularly in Pro Se Cases

From Herrington v. Spruill, 2008 U.S. Dist. LEXIS 122700 (S.D. Fla. June 5, 2008): Herrington's Response (DE# 46) and Statement of Facts (DE# 47) are not in affidavit form, and are not themselves sworn under penalty of perjury. Relevant facts stated in Herrington's Response, however, are also stated by him in his sworn Amendment to the c ...
From Herrington v. Spruill, 2008 U.S. Dist. LEXIS 122700 (S.D. Fla. June 5, 2008): Herrington’s Response (DE# 46) and Statement of Facts (DE# 47) are not in affidavit form, and are not themselves sworn under penalty of perjury. Relevant facts…
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Production of Email in Discovery Authenticates the Email

Bruno v. AT&T Mobility, LLC, 2011 U.S. Dist. LEXIS 59795 (W.D. Pa. June 3, 2011): Plaintiff argues that the series of emails between Ms. Menster and Mr. Thomas have not been properly au-thenticated. *** "A party to litigation that produces documents during discovery in that litigation thereby authenticates the documents it has produced." ...
Bruno v. AT&T Mobility, LLC, 2011 U.S. Dist. LEXIS 59795 (W.D. Pa. June 3, 2011): Plaintiff argues that the series of emails between Ms. Menster and Mr. Thomas have not been properly au-thenticated. *** “A party to litigation that produces…
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Self-Authentication and Judicial Notice of Government Website Postings

From Scurmont LLC v. Firehouse Restaurant Grp., 2011 U.S. Dist. LEXIS 75715 (D. S.C. July 8, 2011): Records from government websites are generally considered admissible and self-authenticating. Courts have also taken judicial notice, pursuant to Fed. R. Evid. 201, of information taken from government and media websites. See generally R ...
From Scurmont LLC v. Firehouse Restaurant Grp., 2011 U.S. Dist. LEXIS 75715 (D. S.C. July 8, 2011): Records from government websites are generally considered admissible and self-authenticating. Courts have also taken judicial notice, pursuant to Fed. R. Evid. 201, of…
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Delaware Supreme Court Affirms Enhanced Burden of Proof, Corroboration Requirement and $3.2 Million Award as Sanctions for Wiping Unallocated Space, Deleting Traces of Spoliation and Destroying Electronic Documents

From Genger v. TR Inves., LLC, 2011 Del. LEXIS 371 (Del. Sup. Ct. July 18, 2011): Two weeks after the entry of the stipulated final judgment, the Trump Group moved for relief from that judgment and to re-open the Section 225 proceeding. The Trump Group claimed that, after taking control of Trans-Resources, they discovered that Genger ha ...
From Genger v. TR Inves., LLC, 2011 Del. LEXIS 371 (Del. Sup. Ct. July 18, 2011): Two weeks after the entry of the stipulated final judgment, the Trump Group moved for relief from that judgment and to re-open the Section…
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Sanctions — That Others Have Filed Similar Lawsuits that Have Not Been Dismissed, If Anything, Militates against a Finding of Improper Purpose — Mere Fact that Plaintiff Has Filed Other Lawsuits Insufficient to Sustain § 1927 Sanctions

From Beecher v. Riverdale Riding Corp., 2011 U.S. Dist. LEXIS 86654 (S.D.N.Y. Aug. 3, 2011): Beecher commenced this action on July 2, 2008 and amended her complaint on September 3, 2008. The allegations in Beecher's amended complaint concern the operation of the River Ridge Equestrian Center ("River Ridge"), a riding facility operated by d ...
From Beecher v. Riverdale Riding Corp., 2011 U.S. Dist. LEXIS 86654 (S.D.N.Y. Aug. 3, 2011): Beecher commenced this action on July 2, 2008 and amended her complaint on September 3, 2008. The allegations in Beecher’s amended complaint concern the operation…
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Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Electronic Spoliation/Rule 37(e): (1) Finding of Recklessness But Neither Gross Negligence Nor Willfulness in Loss of Video Evidence Precludes Rule 37(e)(2)’s Severest Sanctions Because (i) No Intent to Deprive and (ii) Rule 37(e)(2) Displaces District Court’s Power to Invoke Inherent Power to Impose Those Sanctions — (2) Appellate Review = Abuse of Discretion, With The Caveat That Whether The District Court Applied The Correct Legal Standards Is Reviewed De Novo — (3) Inherent Power Is Often Available As An Alternate Source of Sanctioning Power But Can Be Limited by Rule or Statute, Something Which Courts Do Not Lightly Presume — (4) The Text of Rule 37(e)(2), As Confirmed by the Advisory Committee Note, Displaces Inherent Power to Impose the Sanctions Specified in the Rule or Any More Severe Sanctions — (5) “Intent to Deprive” in Rule 37(e)(2) = “The Willful Destruction Of Evidence With The Purpose Of Avoiding Its Discovery By An Adverse Party” — (6) Appellate Standing Conferred by Virtue of Issuance of Sanctions Regardless of Merits Outcome — (7) Value of Advisory Committee Notes in Interpreting Rules Enacted without Change Despite General Reticence to Rely on Legislative History

RICO: (1) Plaintiff Need Not Suffer Injury from Each Predicate Act to Establish Standing, And The Pattern May Include Predicates As to Which No Plaintiff Has Standing — (2) 7 Elements of a Civil RICO Claim (2d Circuit Articulation) Which Must Be Established As to Each Defendant — (3) Requirements of an Association-in-Fact Enterprise — (4) Each Defendant Must Personally Commit 2 or More Predicate Acts — (5) Pattern of Racketeering Activity: Horizontal and Vertical Elements — (6) No Requirement That All Members of a RICO Enterprise Joined at Inception — Can Join Over Time/Others Can Quit — (7) Cannot Charge 2 Predicate Acts Where One Action Violates Two Statutes — (8) A Footnote to Consider for Briefs: “Unless Otherwise Noted, When Quoting Judicial Decisions This Order Accepts All Alterations And Omits All Citations, Footnotes, And Internal Quotation Marks.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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